Delhi District Court
State vs . Bishan Swaroop And Othrs. on 25 October, 2021
IN THE COURT OF SH. PUNEET NAGPAL METROPOLITAN
MAGISTRATE-07, WEST DISTRICT, TIS HAZARI COURTS,
DELHI
STATE
VERSUS
BISHAN SWAROOP AND OTHRS.
Computer ID No.63988/2016
FIR NO.254/2008
P.S. Tilak Nagar
U/S 186/353/332/34 IPC
Ct. Satnam Singh,
No. 3459/PCR West Zone,
New Delhi
... Complainant
VERSUS
1. Bishan Swaroop,
S/o Sh. Thakkar Dass,
R/o L-50, Gali No. 7,
New Mahavir Nagar, Tilak Nagar,
New Delhi.
2. Rakesh Satija,
S/o Sh. Bishan Swaroop
R/o L-50, Gali No. 7,
New Mahavir Nagar, Tilak Nagar,
New Delhi.
3. Ajay Kumar Satija
S/o Sh. Bishan Swaroop
R/ o L-50, Gali No. 7,
New Mahavir Nagar, Tilak Nagar,
New Delhi.
.... Accused Persons
Date of Institution : 19.11.2008
Date on which judgment was reserved : 08.10.2021
Date of judgment : 25.10.2021
Final Order : Convicted
FIR No. 254/2008
P.S. Tilak Nagar
State Vs. Bishan Swaroop and othrs.
JUDGMENT
The important facts of the present case are as follows :
1. In the instant case, accused persons namely Bishan Swaroop, and his two sons namely Rakesh Satija and Ajay Kumar Satija have been set up by the prosecution to face trial on the allegations that on 04.07.2008, at about 10:30 pm, at Gali No. 7, New Mahavir Nagar, Delhi, all the accused persons had in furtherance of their common intention, voluntarily obstructed and assaulted/used criminal force to Ct. Satnam Singh, a public servant in discharge of his public function, when he had tried to stop the accused persons from using criminal force upon one TSR Driver namely Jasmit Singh at the spot. At the same time, it was alleged against the accused persons that the accused persons had also caused hurt to Ct. Satnam Singh by beating him with the intention to prevent him from discharging his duty. Thus the accused persons were alleged to have committed offences u/s 186/353/332/34 IPC.
2. The FIR was lodged at the instance of complainant Ct. Satnam Singh in respect of offences punishable u/s 186/353/332/34 IPC. On conclusion of investigation, challan u/s 173 Cr. P.C was filed against all the three accused persons u/s 186/353/332/34 IPC.
3. Cognizance was taken against the accused persons by the then Ld. MM/West on 19.11.2008 and the accused persons were summoned. In the light of the above stated facts and proceedings and FIR No. 254/2008 P.S. Tilak Nagar State Vs. Bishan Swaroop and othrs.
after making compliance of provisions of section 207 Cr. P.C vide order dated 20.09.2011, charges u/s 186/353/332/34 IPC were framed against all the accused persons by the then Ld. MM-05/West/THC, Delhi to which all the accused persons pleaded not guilty and claimed trial.
4. Thereafter, the matter was fixed for prosecution evidence. The prosecution examined 7 witnesses to bring home the guilt of the accused.
5. PW1/HC Vedpal deposed that on 04.07.2008, he was posted as IC, PCR, Power-34 and on the aforementioned day, his duty hours were from 08:00 pm to 08:00 am. He deposed that on the said day, at about 10:25 pm, he received an information from control room P-1 through wireless regarding quarrel at Mandir Wali Gali, New Mahavir Nagar, Metro Station. Subsequently, they had parked the PCR in front of aforementioned gali and the driver Ct. Tarif remained present in the PCR Van. He deposed that he had along with his gunman Ct. Satnam Singh went inside Gali No.7, New Mahavir Nagar and there, they found that three persons were beating one TSR person. Thereafter, he/PW1 and Ct. Satnam tried to save the said TSR person from the afore-stated three persons, who were beating the TSR person. PW1 further deposed that at that time, the three persons (the above-mentioned three accused persons) had caught hold of the neck of Ct. Satnam and scolded them by saying that "Salo tum Kon ho, aise police wale hamne sekdo dekhein he". PW1 deposed that one of the three persons was one namely Bishan Swaroop FIR No. 254/2008 P.S. Tilak Nagar State Vs. Bishan Swaroop and othrs.
and other two persons were his sons. During the course of his testimony, PW1 had correctly identified all the three accused persons, who were present in the court. He further deposed that the accused persons had also scolded them by saying "Tum log hamare bare him nahi jante abhi batate hain". Thereafter, accused namely Bishan Swaroop had caught hold the Ct. Satnam and said "Maro salo ko". Upon hearing this, the other two accused persons also started beating Ct. Satnam with foot and fist. PW1 deposed that somehow they tried to save themselves and left the spot by fleeing away. Subsequently, at some distance from the spot, they gave information to their seniors in control room. It was the version of PW1 that after about 5-10 minutes, they again came at the spot for inspection and at that time, the three accused persons were not found at the spot. The other persons who were present at the spot had told about the whereabouts and address of the aforementioned three accused persons. He deposed that the address which was told to them by the public persons was L-50, Gali No.7, New Mahavir Nagar. Meanwhile, the IO/SI Tyagi along with his staff arrived at the spot and recorded the statement of Ct. Satnam. PW1 deposed that the IO also caught the 03 three accused persons from Gali No.7, New Mahavir Nagar. Subsequently, Ct. Satnam Singh, the TSR driver namely Jasmit Singh and the three accused persons were taken to DDU Hospital for medical examination. PW1 was not cross-examined by the accused persons despite opportunity. Thus, the testimony of PW1 has gone unrebutted.
6. PW-2/Ct. Tarif Singh deposed that on 04.07.2008, he FIR No. 254/2008 P.S. Tilak Nagar State Vs. Bishan Swaroop and othrs.
was posted as Constable/driver at PCR, Power-34 along with IC HC Vedpal and Ct. Satnam and that on the said day, his duty hours were from 08:00 pm to 08:00 am. PW2 deposed that on the said day, at about 10:25 pm, an information was received from control room P-1 through wireless regarding a quarrel at Mandir Wali Gali, New Mahavir Nagar, Metro Station. He deposed that he had parked the PCR Van in front of aforesaid gali and IC HC Ved Pal and gunman Ct. Satnam Singh, reached inside the Gali No.7, New Mahavir Nagar. He deposed that he was present in the PCR and he had seen that three persons were beating one TSR person/driver. It was his version that when Ct. Satnam had tried to save the said TSR person from the aforesaid three persons, one of the three persons caught hold of the neck of Ct. Satnam and other two persons started beating Ct. Satnam with foot and fist. During the course of his testimony, PW2 correctly identified the three accused persons, who were present in court to be the ones, who had committed the alleged offences. He deposed that thereafter, somehow Ct. Satnam and HC Vedpal had tried to save themselves and they ran towards the PCR Van which was just near the spot of the incident and thereafter, he drove the PCR Van in speed and stopped at some distance. Subsequently, they gave information to their senior in control room. After 5-10 minutes, they again came at the spot for inspection and at that time, the three accused persons were not found at the spot. PW2 deposed that the other persons who were found present at the spot had told them regarding the whereabouts and address of the aforementioned three accused persons and the address which was told to them was L-50, Gali No.7, New Mahavir Nagar. PW2 deposed FIR No. 254/2008 P.S. Tilak Nagar State Vs. Bishan Swaroop and othrs.
that meanwhile, IO/SI Tyagi along-with his staff came at the spot and recorded the statement of Ct. Satnam and also caught the three accused persons from Gali No.7, New Mahavir Nagar. Subsequently, PW2, Ct. Satnam, TSR Driver namely Jasmit Singh and three accused persons were taken to DDU Hospital. PW2 deposed that the IO had recorded his statement. In his cross-examination, PW-2 admitted the fact that the PCR Van used to maintain a register for every call and that a duty register, was also used to be maintained in their office regarding those police officials who used to be appointed in the PCR Van. PW2 deposed that he was not having any knowledge, whether the IO in the present case had registered FIR, regarding the quarrel that took between the accused persons and the owner of the said TSR. PW2 deposed that he had not seen the registration number of the TSR. He also showed his ignorance as to whether the In- Charge of the said PCR where he was appointed as a driver has given the details of the PCR form where the in-charge had recorded the information. PW2 denied the suggestion of the accused to the effect that he had not seen the occurrence / incident. He deposed that when the In- charge had received the information, his PCR van was standing under the metro station, New Mahavir Nagar. He deposed that when his statement was recorded, he was not having knowledge regarding the names and addresses of the accused persons. He deposed that he had neither read nor signed his statement. However, his statement was recorded at PS on 04.07.08. PW-2 deposed during his cross-examination that he had stated to the IO that the accused had caught hold of the neck of Ct. Satnam. He deposed that he had not seen, where the owner of the TSR had sustained FIR No. 254/2008 P.S. Tilak Nagar State Vs. Bishan Swaroop and othrs.
the injuries and that he was unable to recollect the name of the body parts where Ct. Satnam had sustained injuries. PW2 admitted the fact that Ct. Satnam Singh had not called the PS regarding the injuries sustained by him at the hands of the accused persons and that they had obstructed Ct. Satnam Singh in discharge of his official duties. It was the version of PW2 that their commander IC/HC Ved Pal had forwarded the above- stated information and that this information was reduced into writing. PW2 also admitted the fact that the IO of this present case had not seized the uniform of Ct. Satnam in his presence. PW2 was also unable to recollect the number of the house, where he had parked the PCR Van. He deposed that no statement of any public person, who was residing in the vicinity was recorded in his presence. PW2 also admitted the fact that they had arms in the PCR Van. PW2 was also unable to recollect the details of the vehicle in which and the name of the person, who had taken Ct. Satnam to the hospital. He deposed that the statement of Ct. Satnam was not recorded in his presence. PW2 deposed that the IO of the case had reached at the spot after 40/45 minutes. PW2 deposed that no writing work was prepared in his presence. He admitted the fact that they maintain a log book in PCR. PW2 categorically denied the fact that he was not on duty on the date of incident or that he was deposing falsely so as to falsely implicate the accused persons at the instance of senior police officials as the accused persons had lodged complaint against them. PW2 also denied the fact that on the day of the incident, they deliberately had not maintained the PCR form register. Subsequent to his cross- examination at the instance of the accused persons, PW2 was re-
FIR No. 254/2008P.S. Tilak Nagar State Vs. Bishan Swaroop and othrs.
examined by Ld. APP for the State. In his re-examination, he deposed that he gave the statement to the police on 05.07.2008 and that the statement of Ct. Satnam was recorded in his presence by the IO. Subsequent to his re-examination, PW2 was further cross-examination at the instance of the accused persons. In his further cross-examination, PW-2 deposed that his statement was not recorded on 04.07.2008. He deposed that he cannot recall the day, when the statement of Ct. Satnam Singh was recorded by the IO, however, as per the version of PW2, the same might have been recorded on 05.07.2008 and the same was recorded in his presence. PW2 categorically denied the suggestion of the accused persons to the effect that he was deposing falsely and that the accused persons were falsely implicated at the instance of police officials of PS Tilak Nagar as the accused persons used to make complaints against their illegal activities. PW-2 also deposed that he does have any knowledge as to whether the accused namely Bishan Swaroop sustained injuries on the day of incident or not.
7. PW-3/complainant/injured HC Satnam Singh deposed that on 04.07.2008, he was posted as a constable at PCR, Power 34, along with IC/HC Vedpal and driver Ct. Tarif Singh and that his duty hours were from 8.00 pm to 8.00 am. PW3 deposed that on the said day, at about 10.25 pm, they received a call from Power-1 through wireless regarding a quarrel at Mandir Wali Gali, New Mahavir Nagar, Metro Station, Delhi. For the enquiry, they reached at the spot. It was the version of PW3 that at the spot, he saw that three persons namely Bishan FIR No. 254/2008 P.S. Tilak Nagar State Vs. Bishan Swaroop and othrs.
Swaroop along-with his sons were beating an Auto driver. When they tried to intervene to save the Auto driver, the accused namely Bishan Swaroop said "Auto wale ko baad him dekhtein hain pehle in sale police walo ko dekhtein hain". He deposed that the accused Bishan Swaroop had caught hold of him from his neck and started beating him with fists and kick blows. He deposed that the accused namely Bishan Swaroop was abusing him and while abusing, the accused Bishan had told him that his name is Bishan Swaroop and the other accused persons are his sons namely Ajay and Rakesh. Thereafter, they left the spot to save themselves and subsequently, they informed the police control room via wireless. After about 05-10 minutes, police reached at the spot but by that time, the accused persons had already left the spot. He deposed that he had given his statement (Ex.PW-3/A) to the IO at the spot. PW3 deposed that thereafter, he along-with the accused persons were got medically examined. He deposed that the IO had arrested the accused persons and conducted their personal search vide memos Ex.PW3/B - Ex. PW3/G. In his cross-examination, PW-3 deposed that he had gone through his statement Ex.PW-3/A before signing the same and that his statement was recorded by the IO at about 11.00/11.30 pm and it took about 1-1¼ hours. He deposed that they used to made entry in the PCR Van when they joined their duty. He admitted the fact that the PCR in-charge and he had not given duty register or any other entry, that on the day of incident. he was posted at PCR vehicle P-34 to the IO. It was the version of PW3 that he had told the IO about his duty along-with other police officials in the van verbally. He deposed that they had made an entry in their PCR FIR No. 254/2008 P.S. Tilak Nagar State Vs. Bishan Swaroop and othrs.
register regarding the quarrel at New Mahavir Nagar and that the Auto driver had not lodged any complaint separately to the IO. Vol. Auto driver had given his statement to the IO. He deposed that he did not know whether the auto driver was got medically examined or not or whether the IO had recorded the statement of any public witness at the spot. It was his version that as many persons had gathered there, the IO had took him to a separate place, away from the spot. He deposed that he had told to the IO in his statement Ex.PW3/A that the quarrel took place at New Mahavir Nagar. He deposed that he had told the name of the other accused persons namely Rakesh and Ajay in his statement Ex.PW-3/A. He deposed that he was not able to recall the number of Auto. However, he had told to the IO in his statement, the registration number of the Auto and the name of the driver of the said auto. He deposed that he had not disclosed the name of the accused persons who assaulted him to the doctor. He deposed that he had received injury on his neck. He deposed that he had refused to give his uniform to the IO for seizing the same. PW3 categorically denied the suggestion of the accused persons to the effect that he deliberately did not give the uniform to the IO as he was not on duty on the day of the alleged incident. He deposed that he had told to the doctor that he was a police official and that he was on duty. It was his version that Ct. Bhagwan Dass had taken him to the Hospital. He admitted the fact that he had told his residential address as well as his current posting in the PCR. However, he categorically denied the suggestion of the accused to the effect that he had not told the doctor about his current posting because he was not on official duty on the day of alleged incident. He deposed that he had FIR No. 254/2008 P.S. Tilak Nagar State Vs. Bishan Swaroop and othrs.
disclosed in his statement that when they were intervening, the accused namely Bishan Swaroop said "Auto wale ko baad him dekhtein hain pehle in sale police walo ko dekhtein hain".
8. In his further cross-examination, the complainant/PW3, deposed that his statement was recorded by the IO after 11:00 pm on the day of incident and that it took about two hours for recording his statement by the IO. He deposed that his statement was recorded by the IO at the spot before conducting the medical examination. He admitted the fact that he had not given any document to the IO to effect that on the day of incident, he was doing duty at PCR. PW3 categorically denied the suggestion of the accused persons to the effect that he had not given any document to the IO because he was not posted at any point of time at PCR. He deposed that the statement of the TCR driver was just recorded after his statement by the IO at the spot itself. PW3 deposed that he is not having any knowledge whether the IO had recorded the statement of any public person. He deposed that when the IO recorded his statement, he was not having any knowledge regarding the names of the accused persons. PW3 categorically denied the suggestion of the accused persons to the effect that on the day of the incident, he was not posted on any official duty or that the accused persons never caused any kind of injury to him. He denied the fact that the accused persons have been falsely implicated by him in connivance with local police officials or that the police officials of PS Tilak Nagar caused injuries to the accused persons and the local police failed to lodge FIR No. 254/2008 P.S. Tilak Nagar State Vs. Bishan Swaroop and othrs.
any complaint against the police officials and in-connivance with them, the accused persons have been falsely implicated in the present case.
9. PW-4/ASI Dharampal proved the FIR of the instant case. He deposed that on 05.07.08, he was posted at PS Tilak Nagar as the duty officer and that he had received a copy of rukka sent by SI Yogesh Tyagi through Const. Bhagwan Dass at about 1:25 A.M. on the basis of which he got the FIR of the instant case registered. He proved the true print out copy of the FIR as Ex. PW4/A He further deposed that he had handed over the copy of FIR to Ct. Bhagwan Dass and that he had made an endorsement (Ex.PW4/B) on the tehreer to this effect. PW4 was not cross examined by the accused persons despite opportunity.
10. PW-5/ASI Bhagwan Dass deposed that on 04.07.2008, he had along-with the IO, on receipt of DD No. 33A by IO/SI Yogesh Tyagi, went to the spot i.e. Near Metro Station and Mandir in Mahavir Nagar, where they found PCR Van P-34. He deposed that at the spot, Ct. Satnam Singh/ complainant gave his statement to the IO and IO recorded the same. It was the version of PW5 that, the complainant had told them that the PCR Van and other staff reached at the spot (at Gali No.7, New Mahavir Nagar) on receipt of a call, where accused Bishan Swaroop, Rakesh and Ajay had beaten him. He also deposed that the PCR staff had disclosed that the accused persons reside at L-50, Gali No.7, New Mahavir Nagar, Delhi and that the accused persons were having the quarrel with a TSR driver and thereafter they started quarreling with the FIR No. 254/2008 P.S. Tilak Nagar State Vs. Bishan Swaroop and othrs.
PCR staff. It was the version of PW5 that the driver of TSR was also present there, however, he/PW5 was not able to recollect the name of the TSR driver. Thereafter, the IO had called the other staff by telephone. He further deposed that the IO himself and with the help of other staff had apprehended the accused persons. During the course of his testimony, PW5 correctly identified the three accused persons namely Bishan Swaroop, Ajay and Rakesh, who were present in the Court. PW5 deposed that thereafter, the IO himself and other staff (including PW5) along-with the three accused persons, Ct. Satnam Singh and driver of TSR went to DDU Hospital, for medical examination. PW5 also deposed that the IO had prepared Tehrir and the same was handed over to him for registration of FIR and on the basis of the same, he had got the FIR of the instant case registered. After registration of FIR at PS Tilak Nagar, he had along-with original Tehrir and copy of FIR, came back to DDU Hospital and handed over the same to IO. Thereafter, the IO formally arrested the accused persons vide arrest memos Ex.PW-3/B, PW3/C, Ex.PW-3/D and the personal search of the accused was carried out vide personal search memos Ex.PW3/F, Ex.PW-3/E and Ex.PW-3/G respectively. In his cross- examination, PW-5/ASI Bhagwan Dass, deposed that he had along-with the IO, reached at the spot at about 10.30 P.M. He admitted the fact that the spot was surrounded by the public persons and that the IO made enquiry from the public persons. He deposed that the IO had recorded the names of the persons from whom, he had made inquiries. PW5 also deposed that the IO had not seized the uniform of the police officials of PCR and that only one police official (Ct. Satnam Singh) of PCR had FIR No. 254/2008 P.S. Tilak Nagar State Vs. Bishan Swaroop and othrs.
sustained injuries. He deposed that the statement of injured was recorded by the IO at 11/11:30 P.M. PW5 was ignorant regarding the fact as to whether the IO had collected the relevant entry of rojnamcha of the PCR van or whether the IO had seized any documentary proof, that on the day of incident Ct. Satnam Singh, Ct. Tareef Singh and HC Vedpal was on duty on PCR vehicle, i.e., P-34. He deposed that his statement was recorded by the IO at around 3.30 A.M.-4.00 A.M. at DDU Hospital and that he had taken the rukka at about 12.45 A.M. (night). PW5 was also ignorant regarding the time when the injured was admitted and the time of discharge of injured from the DDU Hospital and also regarding the fact whether the injured was fit to give statement to the IO. PW5 was also unable to recollect the registration number of TSR. He deposed that he does not remember whether the number of TSR was mentioned in his statement or not. However, he deposed that he had stated to the IO, in his statement, the name of owner of TSR and which was Jasmeet Singh and the fact that the said Jasmeet Singh was driving the said TSR. He also deposed that the accused persons were also taken to hospital and they were also medically examined. However, PW5 was not having any knowledge whether the accused persons had sustained injuries. PW5 deposed that the statement of the driver of TSR was recorded at DDU Hospital, however, he was not able to recall whether the statement of driver of TSR was recorded after he came back from PS or prior to the same. PW5 categorically denied the suggestion of the accused persons to the effect that the accused persons were falsely implicated by the police officials of PCR as they knew the officials of PCR prior to the incident or FIR No. 254/2008 P.S. Tilak Nagar State Vs. Bishan Swaroop and othrs.
that the IO implicated accused persons with the connivance of complainant because accused persons used to lodge complaints against the police officials of PS Tilak Nagar. PW5 also denied the suggestion of the accused persons to the effect that the police officials had beaten the accused persons and when they tried to lodge complaint against them, then accused persons falsely implicated in the present case.
11. PW-6/Dr. Rajesh Kohli deposed that he had been working in the DDU Hospital as a CMO since 2002 and that on 05.07.2008, Dr. Indra Kumari was working as JR Doctor, Casuality, DDU Hospital. He identified the signatures and handwriting of the aforementioned doctor and deposed that the said doctor had left the Hospital and her present whereabouts are not known to the hospital. He deposed that as per the record, on 05.07.2008, the original MLC No. 12241 (Ex.PW6/A), patient namely Jasmeet Singh was brought with alleged history of assault and after first aid and treatment, the patient was discharged with nature of injury simple blunt. He proved the above-stated MLC, which was prepared by Dr. Indra Kumari in her handwriting and which was bearing her signatures on point A. PW5 also proved the original MLC No. 12242 ( Ex.PW6/B ) dated 05.07.2008, which was relating to the patient namely Satnam Singh, who was also brought with alleged history of assault and after first aid and treatment, the said patient was discharged with nature of injury simple blunt. In his cross- examination, PW-6, admitted the fact that the above-mentioned two MLC's were not prepared in his presence. He deposed that he cannot say FIR No. 254/2008 P.S. Tilak Nagar State Vs. Bishan Swaroop and othrs.
whether the injuries mentioned in the MLC's could be caused by fall on the street or road or whether the injuries mentioned in the above- mentioned MLCs could be self-inflicted as he had not personally examined the abovesaid patients. However, PW6 categorically denied the suggestion of the accused persons to the effect that both the above- mentioned MLC's are manipulated.
12. PW-7/IO/ Insp. Yogesh Tyagi deposed that on 04.07.2008, the DD bearing No. 33A, which was regarding quarrel was marked to him for investigation. Thereafter, he had along-with Ct. Bhagwan Das went to the spot i.e. Near Metro Station, Mahavir Nagar, Delhi, where they found one PCR Van P-34. He deposed that at the spot, he had recorded the statement of complainant/Ct. Satnam Singh and which has already been exhibited as Ex. PW-3/A. He deposed that he also met Ct. Taarif and HC Ved Prakash at the spot and that he called some more staff as many public persons had gathered at the spot. He deposed that he had along-with, Ct. Satnam Singh and driver of TSR namely Jasmeet Singh reached at in front of H. No. L-50, where three persons were standing and were shouting "Police Ko Bhi Dekh Lenge". Upon seeing the said three persons, Ct. Satnam Singh point out towards them and told that they are the same person who had beaten him. Thereafter, they had apprehended the said three persons. On interrogation, they revealed their names as Bishan Swaroop, Ajay Kumar and Rakesh Kumar. Thereafter, all the three accused persons started shouting and told that they would get their medical examination today. Thereafter, all the FIR No. 254/2008 P.S. Tilak Nagar State Vs. Bishan Swaroop and othrs.
three accused persons along-with Ct. Satnam Singh and Jameet Singh were got medically examined at DDU Hospital. PW7 deposed that as per the MLC of Ct. Satnam Singh, the nature of injury was opined to be simple blunt and as per the MLC of the other persons, the injury was simple. Thereafter, he/PW7 prepared Tehrir and the same was handed over to Ct. Bhagwan Das for registration of FIR. Accordingly, Ct. Bhagwan Das left the hospital and went to PS Tilak Nagar for registration of FIR. After some time, Ct. Bhagwan Das returned back to the hospital and handed over the copy of FIR and original Tehrir to him. Thereafter, all the three accused persons were arrested and personally searched vide memos (Ex.PW-3/B to Ex. PW-3/G). Thereafter, the accused person were sent to lock up. On the same day, accused persons were produced before the Court and from there they were sent to Judicial Custody. PW-7 also proved the site plan (Ex.PW-7/A), which was prepared by him at the instance of the complainant. PW7 further deposed that later on, a complaint under section 195 Cr. P.C. (Ex. PW-7/B) was filed by the concerned ACP and the same was obtained by him and filed on record. He deposed that he had recorded the statement of the witnesses during the course of his investigation. Thereafter, he concluded his investigation and submitted the charge sheet before the Court. During the course of his examination-in-chief, all the three accused persons, who were present in the court were correctly identified by him.
13. In his cross-examination, PW-7 deposed that he had not collected any document during the course of the investigation to the FIR No. 254/2008 P.S. Tilak Nagar State Vs. Bishan Swaroop and othrs.
effect that the complainant Ct. Satnam Singh was posted on the relevant date at PCR and was performing official duty. He also admitted the fact that he had not recorded the statement of any public person during the course of the investigation to the effect that the accused persons had assaulted the complainant/Ct. Satnam Singh and that they had interfered in his official duty. He deposed that the driver of the TSR had not lodged any complaint with him or in the police station to the effect that the accused persons had quarreled with him or had assaulted him. However, PW7 deposed that he had recorded his statement under section 161 Cr. P.C. He deposed that he had recorded the statement of TSR driver when he reached at the spot after the registration of FIR. PW7 deposed that he was unable to recall the time when he prepared the site plan or whether he had obtained the signatures of complainant on the site plan. PW-7 deposed that he had arrested the accused persons from their house. PW7 deposed that as per the MLC of the accused persons, the injury of accused was merely abrasion, and the same being simple injury and as no complaint was made by the accused persons, no investigation regarding the same was done by him. PW7 categorically denied the suggestion of the accused persons to the effect that the accused persons had made complaint that they had been beaten by the complainant Ct. Satnam Singh and that he had intentionally not made any investigation in this regard/ aspect. He admitted the fact that he had not collected any PCR form regarding the call as the PCR form is prepared only in murder or heinous cases. He also admitted the fact that he had not seized any register regarding duty of Ct. Satnam Singh from the PCR Van as he was not FIR No. 254/2008 P.S. Tilak Nagar State Vs. Bishan Swaroop and othrs.
aware whether any such register is maintained by PCR officials or not. PW-7 also admitted the fact that he had not collected any duty slip from ACP/PCR Van regarding the duty of Ct. Satnam Singh on the said date. He also admitted the fact that the complaint under section 195 Cr. P.C. (Ex.PW-7/B) was not prepared in his presence. He deposed that he was not aware whether the complaint Ex.PW-7/B was filed separately in any Court or not. He also denied the fact that the complaint under section 195 Cr. P.C. (Ex.PW-7/B) was not handed over to PW-7. He has not prepared any memo with respect to handing over of complaint under section 195 Cr. P.C. PW-7 deposed that he had not seized the TSR or the D/L of TSR driver, which was standing at the spot as they had not done anything. He denied the suggestion of the accused persons to the effect that the TSR driver shown by him, was a planted witness. He deposed that he was not able to recall whether he had recorded any statement of Ct. Satnam Singh at the spot before reaching the hospital. PW7/IO denied the suggestion of the accused persons to the effect that Ct. Satnam Singh was not aware of the names of accused persons at the time when his statement was recorded. However, PW7 admitted the fact that he had not seized the uniform of Ct. Satnam Singh. PW7 was not able to recall whether Ct. Satnam Singh had told the names of assaulters to the doctor at the time of preparation of his MLC. PW7 denied the fact that Ct. Satnam Singh was not present on duty at the spot when the incident happened or that he was not subjected to any assault by the accused persons as was alleged. PW7 also denied the fact that the sanction/complaint under section 195 Cr. P.C. is a forged and fabricated document and that the accused persons have FIR No. 254/2008 P.S. Tilak Nagar State Vs. Bishan Swaroop and othrs.
been falsely implicated by him.
14. Though, one public person namely Jasmeet Singh, who was also alleged to be one of the eye-witness, was also cited as a witness by the prosecution, however, he could not be examined as a prosecution witness, as despite efforts, the said witness was not traceable. Therefore, vide order dated 27.07.2018, the name of Jasmeet Singh was directed to be deleted from the list of witnesses. Thereafter, vide order dated 22.08.2019, passed by Ld. Predecessor, PE was directed to be closed and the matter was fixed for recording the statement of the accused persons under section 313 Cr. P.C.
15. However, on the day, fixed for recording statement of the accused persons under section 313 Cr. P.C, in exercise of powers under section 311 Cr. P.C., PE was re-opened and PW1 and PW3 were recalled for cross-examination at the instance of the accused persons. Subsequently, vide order dated 07.12.2019, PE was again directed to be closed and the matter was fixed for recording the statement of accused persons under section 313 Cr. P.C.
16. Statement of all the accused persons was recorded under 313 Cr. P.C., wherein all the accused persons denied all the allegations made against them. It was the version of the accused Bishan Swaroop that the instant FIR has been filed against him and his sons as a counter-blast case, as he had lodged a complaint against SI Umesh Singh, FIR No. 254/2008 P.S. Tilak Nagar State Vs. Bishan Swaroop and othrs.
PS Tilak Nagar. He stated that he had not committed the alleged assault as was stated by the complainant. At the same time, the other accused persons also stated that they had been falsely implicated in the instant FIR. At the same time, the accused Bishan Swaroop submitted that he wished to lead defence evidence. Consequently, the matter was fixed for leading Defence Evidence.
17. The accused Bishan Swaroop choose to examine himself as a sole defence witness. In his testimony as a defence witness, DW1/ accused Bishan Swaroop deposed that on 04.07.2008, he was sitting at home and was taking food at about 09:30 PM. At that time, four police vans came to his residence and around 3-4 police officials entered into his house and started beating him and he was forcibly taken to the Police Station in PCR. He deposed that he was also beaten in the police van and subsequently, in the police station. He deposed that the police officials had not disclosed to him the reason for beating him and that they had told him/DW1 that they will send him to jail because he/DW1 used to lodged complaint against police officials. It was the version of DW1 that he was kept in the PS at night and thereafter, he was taken to hospital for medical examination. Through his testimony, DW1 brought on record, the copy of the complainants which, were lodged by him against the police officials. The same are Ex. DW-1/X(Colly). He deposed that the police has falsely implicated him in the present case because he used to file complaints against the police officials. It was his version that there were three builder partners and when they started illegal construction, then he FIR No. 254/2008 P.S. Tilak Nagar State Vs. Bishan Swaroop and othrs.
lodged complaint against them and thereafter, the police officials in connivance with them falsely implicated him. In his cross-examination, DW-1 deposed that that there was no quarrel, which took place between him and his two sons and that he had not make any complaint telephonically by dialing number 100 against his two sons. DW1 categorically denied the suggestion of Ld. APP for the State to the effect that he and his sons had beaten the police constable namely Satnam Singh by caught holding him from his neck and also beaten Ct. Satnam with fists and foot. He also denied the fact that he had lodged the complaints to save himself and his sons and that he was deposing falsely in order to save him and his sons from possible conviction in the instant FIR. He also denied the fact that he was assaulting one Auto Driver and the police officials had arrived at the spot to save him, and when he had assaulted the said police officials, that the incident in question took place at that time. After the examination of DW1, all the accused persons choose to close defence evidence. Consequently, the matter was fixed for addressing final arguments.
18. I have heard the arguments advanced by Ld. APP for the state and Ld. Counsel for the accused persons and perused the record carefully. Ld. APP for state has argued that the complainant/injured/PW3 and the other witnesses have supported the prosecution and their testimony is worthy of credence. He has argued that on a combined reading of their respective testimonies, offences U/s 186/353/332/34 IPC are proved beyond doubt against all the accused FIR No. 254/2008 P.S. Tilak Nagar State Vs. Bishan Swaroop and othrs.
persons. On the other hand, it has been submitted on behalf of the accused persons that all the accused persons have been falsely implicated in this case and that the prosecution has miserably failed to prove its case beyond doubt against the accused persons and has further prayed for the acquittal of the accused persons.
19. To prove offence u/s 186/353/34 IPC, the prosecution had to prove that the accused persons had voluntarily obstructed Ct. Satnam Singh in discharge of his public/official duty and had used criminal force upon him to prevent/deter him from discharging his public duty.
20. At the same time, to prove offence u/s 332 IPC, the prosecution had to prove that the accused persons had in furtherance of their common intention, voluntarily caused simple hurt to Ct. Satnam Singh during discharge of his public duties and prevented Ct. Satnam Singh from doing his duty.
21. At the outset, it is pertinent to mention that the testimony of an eye-witness/PW1 has gone rebutted. Despite opportunity, PW1 has not been cross-examined by either of the accused persons. At the same time, I found no reason to disbelieve the testimony of PW1/ HC Vedpal. Thus, the testimony of PW1 namely HC Vedpal has to accepted at its face value. A bare perusal of testimony of PW1 clearly reveals that PW1 has deposed all the relevant facts, which form gravamen of the FIR No. 254/2008 P.S. Tilak Nagar State Vs. Bishan Swaroop and othrs.
charges framed against the accused persons. At the same time, the unrebutted testimony of PW1 has been duly corroborated by the testimony of PW2 and of the complainant/injured/PW3.
22. At the same time, I find that the statements of all the material witnesses, that is, PW1/HC Vedpal, PW2/ Ct. Tarif Singh and PW3/complainant/ injured Ct. Satnam Singh are coherent and trustworthy and thus, they are sufficient to prove the prosecution case beyond the shadow of reasonable doubt.
23. in view of the above discussion, it is proved on record that on 04.07.2008, all the accused persons, had used criminal force and had assaulted the public servant/ complainant namely Ct. Satnam Singh. Now, it is to be seen as to what offence(s) has been committed by the accused persons.
24. The accused persons have been charged for the offences U/s 186/353/332/34 IPC. Though, there is a complaint under section 195 Cr. P.C. on record but the same has not been proved. The investigating officer/ PW7 has only deposed that he had collected the complaint (Ex. PW7/B). However, the concerned police officer/concerned ACP, who had filed complaint/ accorded sanction under section 195 Cr. P.C. was neither cited nor examined as a prosecution witness. Thus, as such, the complaint under section 195 Cr. P.C. remained not proved on record.
FIR No. 254/2008P.S. Tilak Nagar State Vs. Bishan Swaroop and othrs.
25. Since the complaint under section 195 Cr. P.C not proved, the charge for the offences punishable under section 186 fails as for proving the offence under section 186 IPC, the complaint under section 195 Cr. P.C, is required to be proved. Perusal of the record (the original complaint) reveals that the allegations in respect to the alleged offence punishable under section 353 IPC are inextricably connected and is an offshoot of section 186 IPC. Thus, in light of the law laid down by Hon'ble Delhi High Court, in case titled as Sachin v State (NCT of Delhi), 2019 (3) JCC 3031, once it is held that the allegations as to the offence punishable under section 353 IPC as contained in the FIR, in essence fall in the nature of the offence punishable under section 186 IPC , then in such case, once the prosecution for the offence under section 186 IPC fails, for want of compliance of section 195 Cr. P.C, and as such, the prosecution for the offence under section 353 IPC, which is an offshoot of section 186 IPC also fails.
26. However, at the same time, the offence punishable under section 332 IPC is distinct from the offence punishable under section 186 IPC as the ingredients of these two offences are separate and distinct. Thus, mere fact that the charge under section 186 IPC has failed, will not automatically/inexorably lead to the failure of the charge under section 332 IPC.
27. Accordingly, in view of the above discussion, the FIR No. 254/2008 P.S. Tilak Nagar State Vs. Bishan Swaroop and othrs.
ingredients of the offence punishable under section 332/34 IPC have been successfully, proved on record by the prosecution against all the accused persons. Consequently, all the three accused persons are hereby convicted for the offences punishable under section 332/34 IPC.
28. Let all the three convicts be heard on the quantum of sentence.
29. Copy of judgment be given to all the convicts free of cost and copy of judgment be placed on case file.
Digitally signedPUNEET by PUNEET NAGPAL Decided on 25.10.2021 Announced through VC (Cisco Webex)NAGPAL Date: 2021.10.25 17:05:44 +05'30' (PUNEET NAGPAL) MM-7, West District, THC. . FIR No. 254/2008 P.S. Tilak Nagar State Vs. Bishan Swaroop and othrs.